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ELCStruck OutELC Judicial Review No. E001 of 2025

Republic v The Attorney General, The County Land Registrar Kisumu County, The County Land Surveyor Kisumu County & Fred Odiwuor Apida, Ex Parte Michael Otieno Arango

Environment and Land Court of Kenya
28 September 2026
SOS. Okong'oEWE. K. Wabwoto
1,546 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court struck out a landowner's judicial review case because he filed a statement of facts without the required verifying affidavit.

What this practically means

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Executive summary

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The ex-parte applicant, Michael Otieno Arango, moved the Court by Chamber Summons dated 25th April 2025 seeking leave to apply for orders of certiorari, mandamus and prohibition against the County Land Registrar and County Land Surveyor, Kisumu, arising from the alleged unlawful exchange of the positions of land parcels Kisumu/Kochieng/3070 and 3071 on the Registry Index Map, which he said enabled the 4th respondent to dispossess him of parcel 3071. He also sought that any leave granted operate as a stay of consequential dealings and of proceedings in Nyando SPMCC ELC No. 96 of 2018. The 4th respondent filed grounds of opposition contending the application offended Order 53 Rule 2 of the Civil Procedure Rules and Section 9(3) of the Law Reform Act. The court identified two issues: whether a case for leave was made out, and whether leave should operate as a stay. It found that although a statement of facts was filed, the verifying affidavit required by Order 53 Rule 1(2) was not on record, a defect flagged as early as 30th September 2025 and never cured. The unverified statements therefore had no evidential value, and the court could not assess arguability, the merits, or even the limitation objection. Applying the arguable-case test in Njuguna v Minister for Agriculture, the court held the application defective in substance, struck it out, and awarded costs to the 4th respondent. The stay issue was not reached.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has made out a case for the grant of leave sought
  2. 2.Whether leave, if granted, should operate as a stay

Key legal issues

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01

Whether the application for leave was properly supported

Holding

The application was incompetent because the verifying affidavit was not on record; the statement of facts was unverified and of no evidential value

Reasoning

Order 53 Rule 1(2) requires an application for leave to be accompanied by a statement and affidavits verifying the facts relied on. The applicant filed only a statement. The defect was flagged on 30th September 2025 but never cured. Without verified facts the court could not assess arguability, determine merits, or even assess the limitation objection.

p. 8
02

Whether leave should operate as a stay

Holding

Not determined; the application having been struck out, the stay question fell away

Reasoning

The court framed two issues - arguability for leave and stay - but the absence of a verifying affidavit meant it could not determine whether an arguable case existed, so the second issue was not reached.

p. 8

Legal principles established

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  • An application for leave to apply for judicial review must be accompanied by an affidavit verifying the facts relied on; unverified statements have no evidential value and render the application incompetent
  • The test for grant of leave is whether, without examining the matter in depth, there is an arguable case that the reliefs might be granted at the substantive hearing

Court orders

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  1. 1.The applicant's Chamber Summons application dated 25th April 2025 is struck out
  2. 2.Costs of the application awarded to the 4th respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

SO
majority

Wrote the judgment

EW
majority
Jurisdiction invoked
Articles 21(1), 23(3), 40(1),(2),(3), 50(1) and 60(1)(b) of the Constitution; Order 53 Rule 1 of the Civil Procedure Rules

Relief refused

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Leave to apply for orders of certiorari, mandamus and prohibition and consequential stay orders

Application not supported by a verifying affidavit as required by Order 53 Rule 1(2); bare statements have no evidential value

p. 8

Costs

Costs to the 4th respondent

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the absence of such an affidavit, the application is incomplete and, to that extent, incompetent.
p. 6Effect of missing verifying affidavit on judicial review leave application
They are, therefore, just bare statements with no evidential value.
p. 8Evidential value of unverified statements
I find that the applicants’ application dated 25th April, 2025, is defective in substance. I strike out the application with costs to the 4th respondent.
p. 8Final orders - striking out
The purpose of application for leave to apply for judicial review is firstly to eliminate at an early stage any applications for judicial review which are either frivolous, vexatious or hopeless
p. 8Rationale for the leave stage

Issues in the judgment

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minor

Ruling written and signed at Mombasa by S. Okong'o J but delivered and countersigned at Kisumu by E. K. Wabwoto J

minor

Delivery date appears as 28th September 2026, more than a year after the hearing on 5th November 2025

minor

All parties recorded as 'N/A' in attendance at virtual delivery

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Republic v The Attorney General, The County Land Registrar Kisumu County, The County Land Surveyor Kisumu County & Fred Odiwuor Apida, Ex Parte Michael Otieno Arango", Case Analysis (2026). ELC Judicial Review No. E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5910/eng@2026-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.